Returning the Veteran to Work

With so many Wisconsin citizens currently serving in the U.S. Armed
Forces and the Wisconsin National Guard, lawyers need to help their
business clients understand what obligations employers have under both
Wisconsin and federal law to reemploy those employees returning from
military service.

ore than 500,000 members of the National Guard and reserves have been
mobilized since President Bush declared a national emergency following
the terrorist attacks of Sept. 11, 2001.1 In
Wisconsin, almost 2,400 members of the Wisconsin National Guard
currently serve on active duty, mostly deployed overseas, and another
7,100 members are ready, fully trained and equipped, for immediate
call-up.2 As those serving in the military
complete their tours of duty, they will be returning to civilian life
and seeking employment. Given the large mobilization and anticipated
return of veterans, the challenge of reemploying veterans may become a
widespread issue for Wisconsin businesses and their attorneys.

Wisconsin employers have obligations under both Wisconsin and federal
law to reemploy employees after they return from military service. The
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) provides employees with employment and reemployment rights
after service in the U.S. Armed Forces or the National Guard.3 Effective in January 2006, the United States
Department of Labor (DOL) for the first time issued final regulations
implementing USERRA.4 In December 2001,
Wisconsin passed a USERRA-type act that provides reemployment rights
following National Guard service.5 In July
2005, Wisconsin also enacted new legislation providing reemployment
rights for employees enlisted in or inducted into the U.S. Armed
Forces,6 which differs from USERRA and
Wisconsin's version of USERRA applicable to National Guard service. The
employer must apply the provisions of state or federal law that are more
favorable to the employee. Because state and federal law differ, the
Wisconsin employee's reemployment rights will be determined by whether
the employee is in the National Guard or the U.S. Armed Forces.

Jennifer S. Walther, Georgetown 1990 cum
laude, is a shareholder with Mawicke & Goisman S.C., Milwaukee,
representing employers in employment litigation and counseling employers
on employment relationship issues. She is a member of the Labor and
Employment and Litigation sections of the State Bar of Wisconsin and of
the Milwaukee and American bar associations. She is admitted to practice
in the state and federal courts in Wisconsin and the Sixth and Seventh
Circuit Courts of Appeals.

Employees engaged in military service have three types of protection:
1) protection from discrimination and retaliation; 2) reemployment
rights; and 3) protection of employment benefits. An employer may have
an affirmative defense to a discrimination claim if the employer can
prove that it would have taken the same action even absent the military
service. An employer may have affirmative defenses to a claim of failure
to reemploy, if the employer can show that circumstances have so changed
since the employee left employment to enter military service that
reemployment is impossible or unreasonable, that reemployment would
cause the employer undue hardship, or that the pre-service position was
temporary.

Discrimination and Retaliation Protection

USERRA specifies that an employer cannot discriminate against an
employee or applicant for employment because of service in the uniformed
services. Employees also are protected under the Wisconsin Fair
Employment Act (WFEA) from discrimination because of military service,
but they are not provided this protection under the Wisconsin military
reemployment laws.7 One court has found that
USERRA's discrimination protections extend to claims for harassment,
provided the employer's conduct was sufficiently pervasive to alter the
employee's conditions of employment and create an abusive working
environment.8

Both USERRA and Wisconsin's military reemployment laws prohibit
retaliation if the individual exercises a right under the law, takes
action to enforce a right (such as filing a complaint), testifies in an
enforcement proceeding, or assists or participates in an
investigation.

These laws apply to all employers, even those with only one employee.
The DOL has specifically stated that supervisors are liable under
USERRA. There is no explicit provision under Wisconsin's military
reemployment laws for supervisory liability, and supervisors are not
liable under the WFEA when acting within the scope of their
authority.9

Burden of Proof

Under USERRA, the employee bears the burden to prove discrimination
or retaliation. The standard is whether the military service was a
"motivating factor" in the employer's action. Military discrimination
cases that have arisen under the WFEA have not specified the employee's
burden of proof. WFEA cases involving other forms of discrimination,
however, adopt a "motivating factor" standard.10

The employer has an affirmative defense to a claim of discrimination
or retaliation by proving that it would have taken the same action even
absent the military service. For example, a veteran lost his USERRA
claim against his former employer when the veteran's hours were reduced
and he was ultimately terminated, because the employee could not prove
that his military service was a motivating factor in the employer's
decisions.11 The employer, a formal wear
business, proved that it would have reduced the employee's hours even
absent his military leave because prom season was over and business was
slow, and also proved that the termination decision was based on the
employee's confrontation with his supervisor, not his military
service.

Reemployment Rights after National Guard Service

Reemployment rights after service in the National Guard are identical
under state and federal law, provided the employee meets the following
eligibility criteria.

The employee must give advance notice to the employer of the need for
leave, except in cases of military necessity. The U.S. Department of
Defense recommends that notice should be given at least 30 days in
advance of the leave. It is doubtful, however, that an employer could
deny reemployment if notice was not given that far in advance.
Permission to leave is not required, nor is the employee required to
accommodate the employer's needs concerning timing, frequency, or
duration of the leave.

The employee may perform military service for a cumulative period of
up to five years with each employer and retain reemployment rights with
that employer. The cumulative period means that the employee can go in
and out of military service several times, as long as the total time
served while working for one employer does not exceed five years. Absent
limited exceptions to the five-year limit, the employee will not retain
reemployment rights after the five years of military service. The
employee must not have a disqualifying discharge from military service,
such as a dishonorable discharge.

The employee is entitled to reemployment if he or she timely returns
to work or applies for work. If the employee's military service was for
less than 31 days, the employee must report to work no later than the
next day following release from service (including reasonable travel
time to get home plus an eight-hour rest period). If the employee's
military service was more than 30 days but less than 181 days, the
employee must submit an application for reemployment within 14 days of
discharge from service. If the employee's military service was for more
than 180 days, the employee must submit an application for reemployment
within 90 days of discharge. If the employee is in the hospital for
military service-related injuries, the employee must submit an
application for reemployment on recovering, but no later than two years
after the end of service. The employer must reemploy the employee
"promptly," which means within two weeks, absent unusual
circumstances.

The employee's application for reemployment can be written or verbal,
but because the laws do not require a particular format, the employer
cannot require a written application. The employer should document any
verbal applications, however, so that there is no question about the
timing of the request. The employee can give the application to the
employer or to someone who has "apparent responsibility" to accept such
applications. The employer should identify a specific named supervisor
or manager, or a specific position, such as a human resources manager,
who has responsibility to accept applications to avoid a claim that the
employee applied to someone he or she mistakenly believed had actual
responsibility. If the veteran does not contact the
specific person that the employer has designated to receive the
application for reeemployment, the veteran will be found to have failed
to apply for his or her job.12

All employers are required to give all employees notice of
their rights under USERRA. The notice, which may be posted, handed to
employees, emailed to them, delivered with paychecks, or otherwise
provided to them as long as all employees are assured access, is
available at www.dol.gov/vets/programs/userra/poster.htm.

Upon employer request, the employee must submit documentation showing
the timing and duration of military service and the conditions of
discharge, so that the employer can determine whether the employee
satisfies the conditions for reemployment. The employer cannot delay
reemployment, however, if such documents do not exist or are not readily
available.

If the employee does not report to or apply for work within the time
frames noted above, the employee becomes subject to the employer's
conduct rules regarding an absence from scheduled work. Thus, an
employer should have a no call/no show policy that can be applied to the
veteran's failure to report to work on time after discharge from
military service, or the employer should add a provision to its military
leave policy stating that a failure to timely report to work on
discharge from military service will be cause for dismissal.

An employee whose military service lasted for more than 30 days but
less than 181 days cannot be discharged, except for cause, within 180
days after return to work. An employee whose military service lasted for
more than 180 days cannot be discharged, except for cause, within one
year after reemployment. This restriction alters the normal at-will
employment relationship in Wisconsin, which allows employers to
terminate employees without cause.13 Under
USERRA, cause may be based on the employee's conduct, but the employee
must have had notice, express or implied, that the conduct would
constitute cause for discharge. Cause also may be for "other legitimate
nondiscriminatory reasons," which are identified as job elimination and
layoff. It is not clear under USERRA whether these two reasons are the
only legitimate reasons, or whether they are simply examples.

State agencies that will enforce the military reemployment laws also
may adopt cause principles from other Wisconsin statutes. For example,
Wis. Stat. section 62.13 defines "just cause" and places a substantial
burden on an employer to justify the termination decision. When
terminating employees, employers should be cognizant of just cause
principles, which include conducting a fair investigation, ensuring that
the employee had notice of the rules, considering whether other
employees have been terminated for the same or a similar offense, and
issuing discipline proportionate to the infraction.

Reemployment Rights after Service in the U.S. Armed Forces

Wisconsin's 2005 statute applicable to employees enlisted in or
inducted into the U.S. Armed Forces provides greater protections than
both USERRA and Wisconsin's version of USERRA for National Guard
service. Reemployment rights following service in the U.S. Armed Forces
differ from reemployment rights following National Guard service in the
following ways.

An employee enlisting in the U.S. Armed Forces is not required to
give the employer advance notice of the need for leave. The USERRA
requirement for advance notice would not apply. Presumably an employer
could request an employee entering service in the U.S. Armed Forces to
voluntarily provide notice but could not deny reemployment if the
employee failed or refused to give notice.

An employee returning from enlistment in the U.S. Armed Forces must
return to work or apply for reemployment within 90 days of discharge
from service, irrespective of the length of service. USERRA's shorter
return requirements for service of less than 181 days would not
apply.

If an employee is hospitalized for a military service-related injury,
the employee has up to six months after release from the hospital to
report to work. The USERRA requirement that the employee apply for
reemployment on recovering from the injury would not apply. Another
difference between the two laws is that USERRA requires a hospitalized
employee to apply for reemployment no later than two years after the end
of service, whereas the Wisconsin reemployment law
applicable to service in the U.S. Armed Forces contains no such time
limit. Because the Wisconsin reemployment law is more favorable than
USERRA regarding release from hospitalization, Wisconsin law will
govern.

An employee returning from enlistment in the U.S. Armed Forces is
protected from discharge without cause for one year, irrespective of the
length of the leave. USERRA's shorter cause protections for shorter
service periods would not apply.

USERRA is more generous than the Wisconsin reemployment law
applicable to service in the U.S. Armed Forces regarding length of
service. Under USERRA, if the employee has been in military service for
a cumulative period of up to five years, the employee retains
reemployment rights, whereas Wisconsin's reemployment law provides a
four-year service limit. Thus, USERRA's longer five-year period should
govern.

The Reemployment Position

The employer must return the employee to a position that reflects
with reasonable certainty the pay, benefits, seniority, and other job
perquisites that the employee would have attained if not for the
military service. This position is known as the "escalator position."
Employers are required to allow absent military reservists to make up
any opportunities for lost overtime or training missed while on
duty.14 The employer will be liable if the
employee is reinstated with diminished job duties.15 Reemployment rights do not entitle an employee
to be placed in a better position than if he or she had remained
employed.

The employee must be qualified for the reemployment position, meaning
the employee is able to perform the job's essential functions. The
employer must make reasonable efforts to assist the employee to become
qualified. This is a similar concept to the reasonable accommodation
requirement under the Americans with Disabilities Act (ADA),16 and courts may borrow from the ADA to interpret
the requirements of USERRA. Courts have found the following employer
actions to be reasonable under the ADA: modifying work schedules17; reallocating job responsibilities18; providing training19; and providing career counseling.20 An employer is not required to hire a full-time
assistant,21 to create a new
position,22 or to allow the employee to
work at home.23 Thus, an employer returning
a veteran to work may have to modify a job or provide training if doing
so would allow the veteran to perform the job's essential functions.

Employers also need to comply with the ADA and the WFEA when
returning a disabled veteran to work, by accommodating the veteran's
disability to allow him or her to work. Employers covered by either the
federal or state Family and Medical Leave Act (FMLA) also need to comply
with the FMLA and provide the veteran time off work for a serious health
condition.

Employers' Affirmative Defenses

An employer can assert several affirmative defenses to a claim for
reemployment, but the employer must prove that the defense is
applicable. The employer can attempt to show that circumstances have
changed since the employee's leave of absence began so as to make
reemployment impossible or unreasonable. For example, to establish this
defense, an employer may have to show that it was necessary to reduce
the workforce or discontinue some particular department or activity. The
employer cannot deny the veteran reemployment simply because the
employer would have to displace an employee who had filled the position
during the veteran's absence.24

The employer can assert that assisting the veteran to become
qualified for the position would pose an undue hardship. To prove undue
hardship, the employer must show significant difficulty or expense, when
considered in light of the cost of the action needed to help the veteran
to qualify for the position and the employer's size and overall
financial resources. The undue hardship defense has been used under the
ADA, and courts may borrow from the ADA to further
define the parameters of this defense under USERRA. For example, courts
have found undue hardship under the ADA when an employer had to hire
another employee to assist the disabled employee,25 but not when an employer had to deviate from its
own policy to transfer the employee to another position for which the
employee was qualified.26 According to the
Seventh Circuit Court of Appeals, the cost of the accommodation to the
employer should not be disproportionate to its benefit to the
employee.27 The ADA cases illustrate that
employers attempting to assert an undue hardship defense under USERRA
should be prepared to establish an action's excessive expense, not
merely its inconvenience.

An employer also can attempt to prove that the employee's original
position was for only a brief, nonrecurrent period, and that the
employee had no reasonable expectation of continued employment.

Benefits

Upon reemployment, the employee is entitled to the seniority and the
seniority-based benefits that the employee would have had if the
employment had not been interrupted by the military service. For
example, an employee is entitled under state and federal FMLA to the
amount of leave for which he or she would have been eligible had he or
she not taken military leave. The employee is not entitled to any
benefit to which he or she would not otherwise be entitled if he or she
had remained employed.

The employee also is entitled to receive all benefits not determined
by seniority that the employer provides to other employees who are on a
leave of absence. USERRA provides that vacation accrual generally is
considered a nonseniority benefit that must be provided to an employee
only if it is provided to other employees on a leave of absence.
Demonstrating the importance of following this provision, the U.S.
Department of Justice recently filed a class action lawsuit against
American Airlines for violation of USERRA, alleging that the airline
reduced the employment benefits (including vacation accrual) of pilots
who had taken military leave while not reducing the same benefits for
pilots who had taken comparable types of nonmilitary leave.28

The employee is entitled to continuation of health insurance benefits
during the military service. Under USERRA, the continuation coverage
lasts for the lesser of 24 months from the date of the employee's
absence for military service, or the date when the employee is required
to return to work. Wisconsin's version of USERRA provides for
continuation coverage for only 18 months since the employee's absence
began, so the more favorable periods under USERRA mentioned above would
govern.

USERRA requires an employer to adopt reasonable requirements for the
selection of continuation coverage. USERRA allows, but does not require,
an employer to use procedures governed by the Consolidated Omnibus
Budget Reconciliation Act of 1985 (COBRA). It may be administratively
more efficient for an employer to use its preexisting COBRA procedures.
Further, employers who use COBRA compliant rules regarding the
employee's election of and payment for continuing coverage can specify a
shorter period of time within which the employee must make his or her
election and pay for the coverage than if the employer does not use the
COBRA rules.

The employee is entitled to protection of his or her pension plan
benefits. Military service is not considered to be a break in employment
for purposes of participation, vesting, and accrual of benefits in a
pension plan. The employer is required to fund the pension plan to
provide benefits that are attributable to the employee's military
service, but the employer is not required to make its contribution until
the employee is reemployed. For plans to which the employee is not
required or permitted to contribute, the employer has the later of 90
days after the employee's return to work or the normal contribution date
to make the contribution. If the employee is enrolled in a contributory
plan and does not make contributions during the military service, he or
she is allowed (but not required) to make up missed contributions during
a period beginning with the date of reemployment and continuing for up
to three times the length of the military service, not to exceed five
years. If the employee does not contribute, he or she is not entitled to
any employer match. Employer contributions that are contingent on the
employee's make-up contributions must be made according to the plan's
requirements for employer matching contributions.

Enforcement

Under Wisconsin law, an employee returning from service in the U.S.
Armed Forces may petition the circuit court to require his or her
employer to comply with the law. An employee returning from service in
the National Guard may file a complaint with the adjutant general or the
Wisconsin Department of Workforce Development (DWD). The adjutant
general will attempt to settle the matter, and the DWD will process the
complaint using the same procedures it uses to process discrimination
complaints under the WFEA. For a violation of USERRA, an employee may
make complaints to the DOL. The DOL will investigate and attempt to
resolve the complaint. The employee also may file a private legal action
in a federal district court.

If a violation is found, remedies include lost wages and benefits.
Under USERRA and the Wisconsin reemployment act applicable to National
Guard service, if the violation is willful, the damage award may be
doubled. Courts, borrowing from the definition of "willful" under the
Age Discrimination in Employment Act,29
have construed willful to mean that the employer has engaged in conduct
with the knowledge that the conduct is prohibited or with reckless
disregard of the fact that the conduct is prohibited.30

Conclusion

An employee returning from military service has the right to
reemployment with his or her pre-service employer, provided the employee
satisfies the eligibility criteria. The employee also has the right to
seniority and other benefits to which the employee would have been
entitled had the employee not been on the military leave. The employer
may not have to comply with the reemployment laws if circumstances have
so changed that to comply would be impossible or unreasonable or would
cause the employer an undue hardship. Wisconsin employers need to be
aware of the various state and federal provisions for reemployment when
an employee returns from military service, and of which rule applies in
which circumstance, to ensure compliance and to avoid liability.